James, J.

1. On 5th August 1936 Gupteswarnath Tewary, a native of Shahabad district, who had instituted in the Court of the Munsif of Kohima in the Naga Hills Civil Suit No. 77 of 1936 for recovery of Rs. 3,472 against Bansropan Singh and Ramraj Singh of Dalsagar in Shahabad, obtained from the Munsif under Order 38, B. 1 a warrant for the arrest of Bansropan Singh which was directed to the District Judge of Shababad. On 6th October 1936 the plaintiff obtained a second warrant of arrest before judgment against Ramraj Singh which the Munsif of Kohima endorsed to the Munsif of the second Court at Buxar. Attempts were made to execute the warrants without success until the District Judge of Shahabad asked the Superintendent of Police for the assistance of constables in executing the warrants.

2. In the early morning of 5th December 1936 the Civil Court peon with three constables approached Bansropan Singh's house where they found Ramraj Singh. The peon informed Ramraj Singh that he had a warrant of arrest against him, and asked him if he would satisfy the claim, whereupon Ramraj Singh attempted to run away, but the peon caught him. Ramraj Singh shouted for help; and Bansropan Singh came up with a dagger with which he wounded the constable Ramanugraha Singh; police constables Ramanugraha Singh and Kuer Singh tackled Bansropan Singh whom they captured. They then bound his hands with Ramanugraha Singh's muretha. Bansropan Singh cried out for help, calling out Biswanath Singh. Biswanath came up with a dagger with which he wounded the constable Ramkripal Singh. He was followed by about fifteen men armed with lathis, one of whom, Rajnath Rai, struck the peon Radha Prasad Pande and the constable Ramswarath Singh with his lathi while the whole body rescued Ramraj Singh and Bansropan Singh from custody. Bansropan Singh, Biswanath Singh and Rajnath Rai with a number of other men who had taken part in the rescue were placed on their trial before the Subdivisional Magistrate of Buxar on various-charges. Bansropan Singh and Biswanath were charged with having been members of an unlawful assembly armed with daggers; they were charged with the offence punishable under Section 148, I.P.C., and also with causing hurt to the constables with the daggers, thereby committing the offence punishable under Section 324 of the Code. Rajnath Singh was charged with causing hurt to the peon and the constable with his lathi and he and the rest of the accused were charged with rioting. All the accused were charged with resistance to the lawful apprehension of Bansropan Singh and Ramraj Singh, and with bringing about their escape, thereby committing an, offence punishable under Section 225-B, I.P.C. Bansropan Singh, Biswanath Singh and Rajnath Rai were also charged with the offence punishable under Section 353, I.P.C.

3. The Sub-divisional Magistrate convicted the accused of the offences charged and sentenced each of them to six months rigorous imprisonment under Section 225. B.I.P.C. He sentenced Bansropan Singh and Biswanath Singh to one year's rigorous imprisonment under Section 148 of the Code; he also convicted them of the offence punishable under Section 324 of the Code, and further convicted them with Rajnath Rai of the offence punishable under Section 353, but passed no separate sentences for these offences. The rest of the accused were sentenced each to six months' rigorous imprisonment under Section 147; while Rajnath Rai was also convicted of the offence punishable under Section 323, but no separate sentence was passed against him. The convicted persons appealed to the Sessions Judge of Shahabad who dismissed their appeal.

4. Mr. Sri Narayan Sahay argues in the first place that the warrants are illegal in form because it does not appear on the face of them that the Munsif of Kohima had any power under Order 38, Rule 1 to issue the warrants. But as the learned Advocate-General points out, the warrants recite that Gupteswarnath Tewari has proved to the satisfaction of the Court that the persons named in the warrants are about to abscond in order to avoid service of process, so that under Order 38, Rule 1(a)(ii) the Munsif had jurisdiction to issue the warrants. Under Section 136, Civil P.C., the warrants had to be addressed to the District Court and the warrant against Bansropan Singh was properly endorsed to the District Judge of Shahabad. The warrant against Ramraj Singh however was endorsed to the Munsif of Buxar; and although it ultimately found its way to the District Judge of Shahabad who issued it for execution, Mr. Sri Narain Sahay argues that the District Judge had no power thus to execute a warrant which was not properly addressed to him under Section 136 of the Code. The learned Advocate-General concedes that the warrant against Ramraj Singh was thus defective in form and he does not defend it as a good warrant.

5. It appears to us that when a Court exercises the extraordinary powers conferred on it by Section 136, Civil P.C., the provisions of that section must be strictly observed; and the warrant must be endorsed to the District Court outside the jurisdiction of the issuing Court, in which the warrant is to be executed. The warrant against Ramraj Singh was therefore defective and Mr. Sri Narain Sahay argues that as that was the warrant which was actually executed which led to the rescue, Ramraj Singh cannot be treated as having been in lawful custody and no offence was therefore committed under Section 225-B of the Code by anybody concerned. If the matter ended there, the petitioners who have been convicted of the offences of rescuing or escaping from lawful custody and of rioting with the common object of effecting the rescue or escape would apparently be entitled to acquittal on those charges, although this defect in the form of the warrant was manifestly not known to them at the time.

6. But, as the learned Advocate-General points out, the petitioners have been convicted not merely for the rescue of Ramraj Singh but for that of Bansropan Singh also. Bansropan Singh was actually under arrest for the reason that he had wounded a constable, and had committed in the presence of the two constables, an offence punishable under Section 324, I.P.C., for which the police officers had powers to arrest him under Clause 1 of Section 54, Criminal P.C., so that he was in lawful custody and the persons rescuing him actually committed the offence punishable under Section 225 of the Code. If he is regarded as having been in custody in execution of the warrant issued under Order 38, Rule 1, Civil P.C., the persons concerned in the rescue were guilty of the offence punishable under Section 225-B of the Code, since there was no defect in the warrant against Bansropan, so that in any view of the matter the persons resisting the arrest of Bansropan and rescuing him from custody were rightly convicted. Ramraj Singh merely escaped from the custody of the peon who had arrested him on a warrant which was defective. So far as he is concerned, the finding and sentences of the trial Court must be set aside, and he must be acquitted and discharged from his bail. Bansropan cannot properly be convicted of the offence punishable under Section 148 of the Code when he was disarmed before the unlawful assembly was formed. But for the rest, he was properly convicted and we set aside the finding under Section 148; we sentence him to one year's rigorous imprisonment under Section 324 of the Code to run concurrently with his other sentence. For the rest of the petitioners. I find no reason to interfere with the findings or sentences of the Court below, and I would dismiss their application.

Madan, J.

7. I agree.